Welcome to another week.
Judge Andrew McFarlane, the head of the family division in England and Wales, issued an update on key measures in the Domestic Abuse Act 2021 (DAA) which have come into force and which affect Britain’s family courts.
The interim update, which forms part of his “View from the Presidents Chambers” series (and we think he needs to change this name to a more accessible one), mentions two key measures which have come into force:
Lower threshold for Children Act 1989
Section 67 of the DAA 2021 includes a new section 91A for the Children Act 1989 [‘CA 1989’].
“The CA 1989, s 91A establishes a new, lower, statutory threshold for the deployment of a s 91(14) prohibition by which the power may be exercised when the court is satisfied that the making of an application for a CA 1989 order of a specified kind would put the child concerned or another individual ‘at risk of harm’,” the press release for the update said.
‘Qualified legal representative’ to cross-examine vulnerable witnesses
We are adding an extract from a summary by LexisNexis below for this section, which provides some background on the measure and which is clearer than the press release:
“The DAA 2021, s 65 inserts a new Part 4B into the Matrimonial and Family Proceedings Act 1984 (MFPA 1984), prohibiting perpetrators of abuse from cross-examining victims in person (and vice-versa) in specified circumstances in family proceedings and is in force with effect from 21 July 2022. The new provisions are now underpinned by a new Family Procedure Rules 2010, PD 3AB and, more generally, by Statutory Guidance.”
And this extract from McFarlane’s update:
“Where cross-examination is prohibited the court must consider whether there is a satisfactory alternative means for cross-examination. A satisfactory alternative does not include the court itself conducting the cross-examination [PD3AB, para 5.3]. If there is no satisfactory alternative, then the court must invite the prohibited party to arrange for a qualified legal representative to act for them for the purposes of cross-examining the witness [s 31W]. If that invitation does not resolve matters, the court must consider whether it is necessary, in the interests of justice, for a qualified legal representative to be appointed by the court.”
And if McFarlane is reading this, we invite you to simplify the language used in these updates, as well as offering clear and full explanations of mechanisms and thresholds mentioned including how they work and who they affect. These updates really should make sense to everyone, including members of the public and families inside the system.